This
action arises from the denial of plaintiff's claim for
Social Security benefits. On December 26, 2013, plaintiff
filed an application for Social Security Disability Insurance
Benefits under Title II of the Social Security
Act.[1]
In his initial application, plaintiff alleged that he was
disabled due to several impairments including brittle
diabetes impairment, reflex sympathetic dystrophy, coronary
artery disease ("CAD"), hypertension cardiovascular
disease, asthma, vertigo, acid reflux, and hiatal hernia as
well as other digestive and cardiovascular
disorders.[2] Plaintiff's application was initially
denied on April 3, 2014, and upon reconsideration on August
22, 2014.[3] Plaintiff then requested a hearing before
the Administrative Law Judge ("ALJ"), who issued an
unfavorable decision on June 24, 2016.[4] Plaintiff
requested that the agency's appeal council review the
ALJ's decision on July 8, 2016.[5] However, the Appeals Council
denied review on October 21, 2016.[6] On December 20, 2016,
plaintiff filed a timely appeal with this
court.[7] Presently before the court are the
parties' cross-motions for summary judgment. For the
reasons that follow, the court recommends that
defendant's motion for summary judgment be granted.

II.
BACKGROUND

Plaintiff
was born on October 24, 1952.[8] He has a high school education
and previously worked as a customer service coordinator and
invoice control clerk.[9] He claimed that his disability onset date
was November 15, 2013.[10] After working for the same company
for almost 30 years, plaintiff was fired in November
2013.[11] He then visited multiple doctors who
advised him to not seek new employment because of his poor
health.[12] Following the advice of his doctors,
since November 2013 plaintiff has not returned to any form of
work.[13] To qualify for disability benefits,
plaintiff must demonstrate that he was disabled within the
meaning of §§ 216(1), 223(d), and 1614(a)(3)(A) of
the Act.

A.
Evidence Presented

Plaintiff
has experienced digestive, cardiovascular, and
musculoskeletal issues since at least November 2013, although
most of his conditions pre-date his alleged disability
period. Plaintiff had multiple cardiac stents inserted, and
experienced chest pain for many years.[14] On October
21, 2013, he visited his long-time cardiologist Thomas
Molloy, M.D., for a follow-up on his coronary heart disease
and chest pain.[15]Dr. Molloy diagnosed plaintiff with
coronary artery disease, diabetes mellitus Type II,
hypertension, hyperlipidemia, dysmetabolic syndrome X,
obesity, shortness of breath, and angina.[16] Plaintiff
visited Dr. Molloy again on December 4, 2013. At that visit,
plaintiff reported his health issues improved since he was
fired and he was worried his health would worsen if he
returned to work.[17] He still experienced chest pains, though
less frequently.[18] His stress echocardiogram tests in March
2010, February 2011, and March 2013 were normal with a
resting ejection fraction of 60%.[19]

On
January 15, 2014, plaintiff visited Dr. Shoshana Feiner, an
internal medicine specialist, who prepared an Impairment
Questionnaire and diagnosed Type II diabetes, metabolic
syndrome, angina/CAD/hyperlipidemia, gastroesophageal reflux
disease, and irritable bowel syndrome.[20] Dr. Feiner
found that plaintiff could only sit for a total of two hours
and walk/stand for three hours in an eight-hour
workday.[21] Plaintiff also would need to move around
every hour for at least five minutes.[22] In addition,
his pain, fatigue, or other symptoms would periodically
interfere with his attention and concentration.[23]

After
visiting Dr. Feiner, plaintiff visited Dr. Molloy who
completed a Cardiac Impairment Questionnaire.[24] Dr. Molloy
diagnosed plaintiff with CAD with class III angina, as well
as fatigue, shortness of breath, and weakness.[25] He stated
plaintiff could sit for an hour and stand/walk for an hour in
an eight-hour work day and could not lift even five
pounds.[26] He further determined plaintiff's
impairments and treatments could result in absences from work
over three times per month, and his symptoms would frequently
interfere with attention and concentration.[27] He opined
that plaintiff is unable to perform any activity that
requires physical activity or mental stress and did not
expect plaintiffs situation to improve.[28]

Plaintiff
routinely had normal physical examination findings during his
physician's visits throughout the alleged disability
period.[29] In August 2015, plaintiff was seen by
Dr. Molloy and explained that he was not exercising or
dieting as recommended because he had been caring for his
wife who has Stage 4 Colon Cancer.[30] In December 2015,
plaintiff underwent a cardiac catheterization because of his
increasing cardiac symptoms and abnormal EKG.[31] Plaintiff
stated that he no longer had shortness of breath and only had
occasional chest pain.[32]

In
addition, plaintiff suffers from reflex sympathetic dystrophy
in his left foot which prevents him from standing or walking
for an extended period of time.[33] From February to
September 2014, he was treated by podiatrist, Jacob
Reinkraut, D.P.M., to address foot pain.[34] He was
diagnosed with diabetic neuropathy, pain syndrome/RSD, and
elongated mycotic nails.[35] By April, his foot pain had lessened
and Dr. Reinkraut recommended pain management, but plaintiff
declined.[36]

Plaintiff
was diagnosed with diabetes in 2009 and was treated by
Michael Magnotti, M.D., an endocrinologist, for this
condition since 2012.[37] Dr. Magnotti's findings have
remained consistent with plaintiff having 5/5 muscle strength
in his legs, no edema in his extremities, and grossly
nonfocal neurological examinations.[38] On April 7, 2014, Dr.
Magnotti completed a Diabetes Impairment
Questionnaire.[39] He did not opine about plaintiffs
ability to sit, stand, walk, or lift, his stress levels and
ability to concentrate during an 8-hour work day, because Dr.
Magnotti felt he was unable to assess these
abilities.[40]

Plaintiff
has also visited chiropractors for musculoskeletal
pain.[41] Dr. Joseph Scarpelli, D.C., a
chiropractor, treated him for many years.[42] An MRI in
2008 revealed bilateral pars defect at ¶ 5 and a mild
disc bulge at ¶ 4-5 with normal facet joints and no
canal or foraminal stenosis.[43] A cervical MRI in 2010 showed
that there was left-sided forminal stenosis at ¶ 5-6 and
mild multilevel facet joint hypertrophy at ¶ 5-6, with
no disc herniation.[44] On August, 12, 2013, Dr. Scarpelli
signed an application for a disabled parking placard, stating
plaintiff was severely limited in his ability to walk because
of an arthritic, neurological, or orthopedic condition and
could not walk two hundred feet without stopping to
rest.[45]

Plaintiff
also suffers from asthma.[46] In September 2013, he had mild
restrictive ventilatory defects;[47] however, he has not
related any asthma-related problems to his treatment
providers.[48]

The
state agency physicians performed two disability
determination evaluations of plaintiff dated March 29, 2014
and August 21, 2014.[49] In their reports, these physicians
considered the treating physician's opinions, and
determined the following regarding plaintiffs
limitations.[50] Plaintiff can occasionally lift/carry
twenty-five pounds, frequently lift/carry ten pounds,
stand/walk for a total of four hours, sit for a total of six
hours, and push/pull an unlimited amount except when limited
by the weight lifted/carried.[51]

B.
Hearing Testimony

1.
Plaintiffs Testimony

At the
administrative hearing on June 13, 2016, plaintiff testified
about his background, work history, and alleged
disability.[52] He was born on October 24,
1952.[53]He is approximately five-foot-ten inches
tall and weighs about 238 pounds.[54] He has a high school
education.[55] He is married and cares for his wife who
has Stage 4 colon cancer.[56]

For
almost 30 years, he worked for Mathias &
Carr.[57] He started as a facilities manager,
running the copy and print shops.[58] He later worked in
customer service.[59] In November 2013, he was terminated
because business was not doing well and he was not writing
any business.[60] He has remained unemployed since
then.[61] Although in 2014 earnings of $11, 000
were reported on plaintiffs tax return under self-employment,
this income was earned by his wife.[62]

After
he was laid off, he was seen by his cardiologist, Dr. Molloy,
his general practitioner, Dr. Feiner, and his foot doctor,
Dr. Reinkraut.[63] Their advice was, due to his poor
health, plaintiff could not work.[64] He has had six stents
inserted, and suffers with angina, pains in his chest, COPD,
asthma, musculoskeletal issues, and shortness of
breath.[65] He is relatively inactive, unable to
climb stairs, and uses an inhaler daily.[66]If he lifts
heavier than five or ten pounds, he experiences pins and
needles up his arm and pain radiating from his shoulder to
his chest and sometimes into his back.[67] In addition,
he has reflex sympathetic dystrophy in his left foot which
prevents him from standing or walking more than twenty
minutes.[68] He can only sit for a maximum of thirty
minutes because of pain in his back and hips.[69] He sees a
chiropractor for his general pain.[70] Plaintiff can only sleep
in hour-and-a-half increments because of leg and foot
pain.[71] Moreover, his stomach issues have
recently worsened.[72]

After
experiencing recurring symptoms in the Fall 2015, he sought a
cardiologist, Dr. Roger Colletti, who performed a coronary
catheterization and angioplasty.[73] Within two weeks
thereafter, because of chest pain, another stent was
inserted, which subsequently was required to be unblocked,
but alleviated his chest pain.[74] His various medications cause
side effects such as dry mouth, bladder issues, and stomach
problems.[75]

Because
of his wife's illness, he makes their meals and does the
grocery shopping; his grandchildren clean the
house.[76] Both plaintiff and his wife do the
laundry.[77] When bathing, he has a seat in the
shower and wears slip-on shoes because he has difficulty
bending down.[78] According to his testimony, no lifting
was required while he was employed in customer service and
internal selling.[79]

2.
Vocational Expert's Testimony

During
the hearing, vocational expert, Louie Schalosi, testified to
plaintiff's background, skills, limitations, and jobs
available within plaintiff's restrictions.[80]Schalosi
characterized plaintiffs work as a customer service
coordinator as a skilled light-exertion
occupation.[81] Plaintiff's employment as an invoice
control clerk is a composite occupation classified as
sedentary exertion, however Schalosi considered it as light
exertion since this job was performed in conjunction with the
customer service coordinator position.[82]

The ALJ
posed the following hypothetical individual of plaintiffs
age, education, and work history who is capable of performing
at the sedentary exertion level, can occasionally climb ramps
and stairs, but never ladders, ropes, and scaffolds,
occasionally can balance, stoop, kneel, crouch, and crawl,
with occasional exposure to extreme cold, extreme heat,
humidity, vibration, fumes, odors, dust, gas, poor
ventilation, and hazards.[83] In response, Schalosi
testified that this individual could not perform
plaintiff's previous work.[84]

The ALJ
further inquired whether there are skills from
plaintiff's previous employment that are transferable to
positions at the sedentary level.[85] Schalosi testified that
there are transferable skills such as handling inventory,
executive thinking, and basic computer, sales, record
keeping, and filing skills.[86] He then identified some of the
sedentary occupations that utilized these skills. The
sedentary occupations utilizing these skills include invoice
control clerk, supervisor of order takers, and telephone
solicitor.[87]

The ALJ
posed a final hypothetical where the individual required
frequent breaks beyond the regular breaks, specifically two
additional, thirty minute breaks, and whether this would
affect the individual's employability.[88] Schalosi
responded because the added breaks would cause the individual
to be off task by at least 10%, this would preclude the
aforementioned occupations.[89]

Plaintiff's
attorney posed a question using the same individual, but who
was absent two to three times a month.[90] Schalosi
testified that such absences would typically preclude all
employment.[91]

C.
The ALJ's Findings

Based
on the medical evidence and testimony provided in the 2016
hearing, the ALJ determined that plaintiff was not disabled
and, therefore, ineligible for Social Security Disability
Insurance.[92] The ALJ's findings are summarized as
follows:

1. The claimant meets the insured status requirements of the
Social Security Act through September 30, 2018.

2. The claimant has not engaged in substantial gainful
activity since November 15, 2013, the alleged onset date (20
C.F.R. §404.1571 et sec?.).

4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525
and 404.1526).

5. After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform sedentary work as defined in
20 C.F.R. § 404.1567(a) except he can occasionally climb
ramps and stairs and never climb ladders, ropes, and
scaffolds; can occasionally balance, stoop, kneel, crouch,
and crawl; and can have only occasional exposure to extreme
cold, extreme heat, humidity, vibration, fumes, odors, dust,
gases, poor ventilation, and hazards.

6. The claimant is unable to perform any past relevant work
(20 C.F.R. § 404.1565).

7. The claimant was born on October 24, 1952, and was 61
years old, which is defined as an individual approaching
retirement age, on the alleged disability onset date (20
C.F.R. § 404.1563).

8. The claimant has at least a high school education and is
able to communicate in English (20 C.F.R. § 404.1564).

9. The claimant has acquired work skills from past relevant
work (20 C.F.R. §404.1568).

10. Considering the claimant's age, education, work
experience, and residual functional capacity, the claimant
has acquired work skills from past relevant work that are
transferable to other occupations with jobs existing in
significant numbers in the national economy (20 C.F.R.
§§ 404.1569, 404.1569(a) and 404.1568(d)).

11. The claimant has not been under a disability, as defined
in the Social Security Act, from November 15, 2013, through
June 24, 2016, the date of this decision (20 C.F.R. §
404.1520)

III.
STANDARD OF REVIEW

A.
Motion for Summary Judgment

Both
parties moved for summary judgment.[93] In determining the
appropriateness of summary judgment, the court must
"review the record as a whole, 'draw[ing] all
reasonable inferences in favor of the nonmoving party[,
]' but [refraining from] weighing the evidence or making
credibility determinations."[94] If there is no genuine
issue as to any material fact and the movant is entitled to
judgment as a matter of law, summary judgment is
appropriate.[95]

This
standard does not change merely because there are
cross-motions for summary judgment.[96] Cross-motions for summary
judgment

are no more than a claim by each side that it alone is
entitled to summary judgment, and the making of such
inherently contradictory claims does not constitute an
agreement that if one is rejected the other is necessarily
justified or that the losing party waives judicial
consideration and determination whether genuine issues of
material fact exist.[97]

"The
filing of cross-motions for summary judgment does not require
the court to grant summary judgment for either
party."[98]

B.
Court's Review of the ALJ's Findings

Section
405(g) sets forth the standard of review of the ALJ's
decision by the district court. The court may reverse the
Commissioner's final determination only if the ALJ did
not apply the proper legal standards, or the record did not
include substantial evidence to support the ALJ's
decision. The Commissioner's factual decisions are upheld
if supported by substantial evidence.[99] Substantial
evidence means less than a preponderance of the evidence, but
more than a mere scintilla of evidence.[100] As the
United States Supreme Court has found, substantial evidence
"does not mean a large or significant amount of
evidence, but rather such relevant evidence as a reasonable
mind might accept as adequate to support a
conclusion."[101]

In
determining whether substantial evidence supports the
Commissioner's findings, the court may not undertake a de
novo review of the Commissioner's decision and may not
re-weigh the evidence of record.[102] The court's review
is limited to the evidence that was actually presented to the
ALJ.[103] The Third Circuit has explained that
a:

single piece of evidence will not satisfy the substantiality
test if the [Commissioner] ignores, or fails to resolve, a
conflict created by countervailing evidence. Nor is evidence
substantial if it is overwhelmed by other evidence,
particularly certain types of evidence (e.g., evidence
offered by treating physicians) or if it really constitutes
not evidence but mere conclusion.[104]

Thus,
the inquiry is not whether the court would have made the same
determination, but rather, whether the Commissioner's
conclusion was reasonable.[105]Even if the court would have
decided the case differently, it must defer to the ALJ and
affirm the Commissioner's decision so long as that
decision is supported by substantial evidence.[106]

Where
"review of an administrative determination is sought,
the agency's decision cannot be affirmed on a ground
other than that actually relied upon by the agency in making
its decision."[107] In Securities & Exchange
Commission v. Chenery Corp.,[108]the Supreme Court found
that a "reviewing court, in dealing with a determination
or judgment which an administrative agency alone is
authorized to make, must judge the propriety of such action
solely by the grounds invoked by the agency. If those grounds
are inadequate or improper, the court is powerless to affirm
the administrative action by substituting what it considers
to be a more adequate or proper basis."[109] The Third
Circuit has recognized the applicability of this finding in
the Social Security disability context.[110] Thus,
this court's review is limited to the four corners of the
ALJ's decision.[111]

C.
ALJ's Disability Determination Standard

The
Supplemental Social Security Income (SSI) program was enacted
in 1972 to assist "individuals who have attained the age
of 65 or are blind or disabled" by setting a minimum
income level for qualified individuals.[112] A
claimant- in order to establish SSI eligibility - bears the
burden of proving that he is unable to "engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be
expected to last for a continuous period of or not less than
twelve months."[113] Moreover, "the physical or
mental impairment or impairments must be of such severity
that the claimant is not only unable to do his previous work
but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful
work which exists in significant numbers in the national
economy."[114] Furthermore, a "physical or
mental impairment" is an impairment that results from
anatomical, physiological, or psychological abnormalities
which are evidenced by medically acceptable clinical and
laboratory diagnostic techniques.[115]

1.
Five-Step Test.

The
Social Security Administration uses a five-step sequential
claim evaluation process to determine whether an individual
is disabled.[116]

In step one, the Commissioner must determine whether the
claimant is currently engaging in substantial gainful
activity. If a claimant is found to be engaged in substantial
activity, the disability claim will be denied.

In step two, the Commissioner must determine whether the
claimant is suffering from a severe impairment. If the
claimant fails to show that her impairments are
"severe", she is ineligible for disability
benefits. In step three, the Commissioner compares the
medical evidence of the claimant's impairment to a list
of impairments presumed severe enough to preclude any gainful
work. If a claimant does not suffer from a listed impairment
or its equivalent, the analysis proceeds to steps four and
five. Step four requires the ALJ to consider whether the
claimant retains the residual functional capacity to perform
her past relevant work. The claimant bears the burden of
demonstrating an inability to return to her past relevant
work. If the claimant is unable to resume her former
occupation, the evaluation moves to the final step.

At this stage, the burden of production shifts to the
Commissioner, who must demonstrate the claimant is capable of
performing other available work in order to deny a claim of
disability. The ALJ must show there are other jobs existing
in significant numbers in the national economy which the
claimant can perform, consistent with her medical
impairments, age, education, past work experience, and
residual functional capacity. The ALJ must analyze the
cumulative effect of all the claimant's impairments in
determining whether she is capable of performing work and is
not disabled. The ALJ will often seek the assistance of a
vocational expert at this fifth step.[117]

If the
ALJ determines that a claimant is disabled at any step in the
sequence, the analysis stops.[118]

2.
Weight Given to Treating Physicians

"A
cardinal principle guiding disability eligibility
determinations is that the ALJ accord treating
physicians' reports great weight."[119] Moreover,
such reports will be given controlling weight where a
treating source's opinion on the nature and severity of a
claimant's impairment is well supported by medically
acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence on
record.[120]

The ALJ
must consider medical findings supporting the treating
physician's opinion that the claimant is
disabled.[121] If the ALJ rejects the treating
physician's assessment, he may not make "speculative
inferences from medical reports" and may reject "a
treating physician's opinion outright only on the basis
of contradictory medical evidence."[122] If an
opinion is rejected, then the ALJ must provide an explanation
"of the reason why probative evidence has been
rejected" so a "reviewing court can determine
whether the reasons for rejection were
improper."[123] However, the explanation need not be
exhaustive, but rather "in most cases, a sentence or
short paragraph would probably suffice."[124]

However,
a statement by a treating source that a claimant is
"disabled" is not a medical opinion: rather, it is
an opinion on an issue reserved to the ALJ because it is a
finding that is dispositive of the case.[125]
Therefore, only the ALJ can make a disability determination.

Statements
about the symptoms[127] alone never establish the existence of
any impairment or disability. The Social Security
Administration uses a two-step process to evaluate existence
and severity of symptoms.

4.
Existence of Pain

First,
the ALJ must find a medically determinable impairment -
proven with medically acceptable clinical and laboratory
diagnostic data - that could reasonably be expected to
produce the claimant's symptoms. Otherwise, the ALJ
cannot find the applicant disabled, no matter how genuine the
symptoms appear to be.

This
step does not consider the intensity, persistence and
iimiting effects of the symptoms on the claimant: it only
verifies whether a medical condition exists that could
objectively cause the existence of the symptom.

Analysis
stops at this step where the objectively determinable
impairment meets or medically equals one listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1, because the claimant is
considered disabled per se.

5.
Severity of Pain

At step
two, the ALJ must determine the extent to which the symptoms
limit the claimant's ability to do basic work activities,
which requires determining the applicant's
credibility.[128]

At this
step, the ALJ must consider the entire record, including
medical signs, laboratory findings, the claimant's
statements about symptoms, any other information provided by
treating or examining physicians and psychologists, and any
other relevant evidence in the record, such as the
claimant's account of how the symptoms affect his
activities of daily living and ability to work.[129]

Where
more information is needed to assess a claimant's
credibility, the ALJ must make every reasonable effort to
obtain available information that would shed light on that
issue. Therefore, the ALJ must consider the following factors
relevant to symptoms, only when such additional information
is needed:

(i) The applicants' account of daily activities;

(ii) The location, duration, frequency, and intensity of pain
or other symptoms;

(iii) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of any
medication the applicant takes or has taken to alleviate pain
or other symptoms;

(v) Treatment, other than medication, the applicant receives
or has received for relief of pain or other symptoms;

(vi) Any measures the applicant uses or has used to relieve
pain or other symptoms (e.g., lying flat, standing for 15 to
20 minutes every hour, sleeping on a board, etc.); and

(vii) Other factors concerning functional limitations and
restrictions due to pain or other symptoms.[130]

A
claimant's statements and reports from medical sources
and other persons with regard to the seven factors, noted
above, along with any other relevant information in the
record, provide the ALJ with an overview of the subjective
complaints, and are elements to the determination of
credibility.

Consistency
with the record, particularly medical findings, supports a
claimant's credibility. Since the effects of symptoms can
often be clinically observed, when present, they tend to lend
credibility to a claimant's allegations. Therefore, the
adjudicator should review and consider any available
objective medical evidence concerning the intensity and
persistence of pain or other symptoms in evaluating the
claimant's statements.

Persistent
attempts to obtain pain relief, increasing medications,
trials of different types of treatment, referrals to
specialists, or changing treatment sources may indicate that
the symptoms are a source of distress and generally support a
claimant's allegations. An applicant's claims,
however, may be less credible if the level or frequency of
treatment is inconsistent with the level of complaints, or if
the medical reports or records show noncompliance with
prescribed treatment.

Findings
of fact by state agency medical and psychological consultants
and other physicians and psychologists regarding the
existence and severity of impairments and symptoms, and
opinions of non-examining physicians and psychologist are
also part of the analysis. Such opinions are not given
controlling weight. However, the ALJ, although not bound by
such findings, may not ignore them and must explain the
weight afforded those opinions in his decision.

Credibility
is one element in determining disability. The ALJ must apply
his finding on credibility in step two of the five-step
disability determination process, and may use it at each
subsequent step.

The
decision must clearly explain - provide sufficiently specific
reasons based on the record - to the claimant and any
subsequent reviewers, the weight afforded to the
claimant's statements and the reasons therefore.

The law
recognizes that the claimant's work history should be
considered when evaluating the credibility of his testimony
or statements.[132] A claimant's testimony is accorded
substantial credibility when he has a long work history,
which demonstrates it is unlikely that, absent pain, he would
have ended employment.[133]

7.
Medical Expert Testimony

The
onset date of disability is determined from the medical
records and reports and other similar evidence, which
requires the ALJ to apply informed judgment.[134] "At
the hearing, the administrative law judge (ALJ) should call
on the services of a medical advisor when onset must be
inferred."[135]

IV.
DISCUSSION

A.
Parties' Contentions

Plaintiff
argues that the ALJ failed to properly weigh the medical
opinion evidence and failed to properly determine his
physical residual functional capacity.[136]He
contends the ALJ failed to follow the Commissioner's
Regulations which provide that if a treating source's
opinion is well-supported by medically accepted techniques
and not inconsistent with other evidence, then the
Commissioner will give it controlling weight.[137] Moreover,
the ALJ may only afford the opinion no weight if the ALJ
considers certain factors including the opining sources'
examining relationship, treatment relationship,
supportability, consistency, and
specialization.[138]

Plaintiff
also contends the ALJ failed to properly evaluate his
testimony.[139] He claims the ALJ failed to give great
weight to his testimony despite the supporting medical
evidence.[140] Plaintiff argues the ALJ erred by
finding him not credible because he is able to engage in some
activities of daily living and he ignored recommendations to
try to lose weight.[141] Thus, plaintiff maintains the
ALJ's decision should be reversed or
remanded.[142]

Alternatively,
defendant contends the ALJ properly evaluated the medical
opinion evidence and substantial evidence supports his
analysis.[143] The ALJ is not required to
uncritically accept any medical opinion, but must evaluate
the applicable level of controlling weight.[144] Here, the
ALJ considered the medical evidence, explained the weight
afforded to each opinion, and provided reasons found in the
record to support his conclusions.[145]

In
addition, defendant argues there is substantial evidence in
support of the ALJ's finding that plaintiff's
subjective statements were not fully consistent with the
record.[146] Defendant posits the ALJ properly and
carefully considered plaintiff's testimony, articulated
his reasons for finding plaintiff's statements were only
partially supported, and identified with specificity the
evidence which supported his conclusion.[147]
Therefore, defendant maintains there is no reversible error
in the ALJ's analysis and plaintiff is attempting to
re-weigh the evidence.[148]

B.
Disability Analysis

Title
II of the Social Security Act, 42 U.S.C. § 423(a)(1)(D),
"provides for the payment of insurance benefits" to
those who contributed to the program and suffer from a
physical or mental disability.[149] In order to qualify
for DIB, a claimant must establish that he was disabled prior
to the date he was last insured.[150] A
"disability" is defined as the inability to do any
substantial gainful activity because of any medically
determinable physical or mental impairment, which either
could result in death or has lasted or can be expected to
last for a continuous period of at least 12
months.[151] To be disabled, the severity of the
impairment must prevent return to previous work, and
considering age, education, and work experience, restrict
"any other kind of substantial gainful work which exists
in the national economy."[152]

As
addressed previously, in determining whether a person is
disabled, the Commissioner is required to perform a five-step
sequential analysis.[153] Should a finding of disability or
non-disability be made at any point in the sequential
process, the Commissioner will not review the claim
further.[154]

However,
where claimant's impairment or its equivalent matches an
impairment in the list of impairments (the
"listings") severe enough to preclude any gainful
work, the claimant is presumed disabled.[155] If not,
then the analysis continues to steps four and
five.[156] At step four, the Commissioner
determines whether the claimant retains the RFC to perform
his past relevant work.[157] A claimant's RFC is
"that which an individual is still able to do despite
the limitations caused by [his]
impairment(s)."[158] "The claimant bears the burden
of demonstrating an inability to return to [his] past
relevant work."[159]

Step
five requires the Commissioner to determine whether the
claimant's impairments preclude adjusting to any other
available work.[160] The burden rests with the Commissioner
to show the claimant is capable of performing other available
work existing in significant national numbers and consistent
with the claimant's medical impairments, age, education,
past work experience, and RFC before denying disability
benefits.[161]

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